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This overview is basically Civics 101 There are three branches of federal government: Executive Legislative Judiciary Checks and Balances System Over Each Other 50 States each have a comparable system of a 3 branch, bicameral government Major Questions of the Class: 1) To what extent can Fed pass laws the affect the states? 2) Or pass laws that interfere with the province of state law ex. Morrison State Laws provide civil actions, not fed What are the peoples powers to challenge laws? This course is about the relationships between the govts and people Due Process: Procedural When the law sets procedures (ie Welfare law) Substantive Question of Legislation. Does Abortion law interfere with rights

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Under Marbury v Madison, the Supreme Court decides that it has the authority to review Acts of Congress as Constitutional (or not). The scope of this review is limited by Article III of the Constitution, the 11th Amendment and Congressional limitations. NOTE: Everything in this case is merely dictum, as Marshall said the SCOTUS had no jurisdiction! Three Questions Marshall stated he was answering: 1) Did Marbury have a right to his commission? YES. Once the SOS Seal was affixed, it is a commission 2) Do the laws provide Marbury with a remedy? YES. He is entitled to his commission 3) Is a writ of mandamus from the SCOTUS the proper remedy? NO. Hidden within Question Three, are two issues: 3.1) What is the nature of a writ of mandamus Equitable remedy, like an injunction. It is appropriate here. 3.2) What is the power of the SCOTUS 3.2.A) Judiciary Act of 1789 13 3.2.B) Does the SCOTUS have power to answer 3.2.A? If the SCOTUS doesnt have the power, who does? SCOTUS jurisdiction is defined in Const.ART III and Jud.Act13 ART III: Original Jurisdiction on Ambassadors, ministers & consuls No original grant of juris under Const must look to 13 13: Two ways to read clause A) It deal with appellate authority only B) General Grant of Further powers (with respect to remedies) Marshall says 13 gives him jurisdiction If it didnt give him jurisdiction, 13 is unconstitutional Arguments based upon Marshall: 1) Congress said Act is constitutional SCOTUS doesnt have power to declare it unconstitutional Not resolved 2) Constitution is supreme law of the land ART VI Supreme law of land is 1) Constitution; 2) Statutes; 3) Treaties made pursuant to Constitution. If Constitution conflicts with an ACT, you have to go with Constit. Laws made repugnant to Const should be struck down Marshall By Dunlap: Marshall asserts authority, but has no true arguments.

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3) Judges take an oath to uphold Const Dunlap says no credibility to this argument 4) Written Constitutional Argument US law was meant to contrast British Britain has no written constitution, only a collection of documents Since Const is written, it is supreme Counter: Other Countries have written const, and their courts still dont decide constitutionality 5) Hamilton in the Federalist No. 78; Courts were designed to be an intermediate body between the people and the legislature VARIOUS INTERPRETATIONS OF MARBURY Can the Ct call something unconstitutional? National Lottery Example Def: MvM stands for the proposition that a FedCt can declare an Act unconstitutional if it is repugnant to the Constitution. USAtty: MvM is only about a branch of governments interpretation of its own Article Marshalls later opinions on MvM: Congress was trying to thwart judicial power by J.A. of 1789 SCOTUS was just trying to protect itself He wasnt interpreting anything beyond their own jurisdiction Separation of powers Congress can define their own section of the Const. Cooper v Aaron (1958, p25 / Ch p46) Judicial department is final and exclusive arbiter of the Constitution Ark Gov Faubus against public school desegregation Said he was not bound by SCt decision ordering desegregation SCt said it is emphatically the province and duty of the judicial dept to Say what the law is Also, every state legislator. Executive and judicial officer takes an Oath to uphold the Constitution

Inclusio Unis, Exclisio Alteris Including One Excludes the Others Marshalls opinion of the Framing of the Constitution

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Can a case be heard in Federal Court? EFFECTIVENESS OF THE REMEDY Advisory Opinions SCOTUS cannot issue an AO If the outcome of the case is Only an AO = no case Must have a case or controversy Standing Ripeness Mootness A must have standing to raise Issue - The party must be proper Have the facts of the dispute Developed enough? Can the court help the parties?


NATURE OF THE ISSUE Political Question Should court get involved? Or should POTUS/Congress? On Ministerial functions, ct has juris

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To take a case, there must be a case or controversy. If, by deciding on a case, the SC will have no impact on its decision after remand, the decision by the court will amount to an advisory opinion. The Supreme Court is not allowed to make advisory opinions because if it did, they will have already made a decision on constitutionality without putting a law in the context of a case or controversy. Advisory Opinions are guided by ART III 2 Case and Controversy Requirement Judicial power is extended to casesand controversies History of Ban on Advisory Opinions: Washington had Jefferson (SOS) as Jay (CJ) for advice on a treaty Jay wouldnt b/c A) SCOTUS doesnt have authority B) If it did, it shouldnt 1) Certain decisions should be by POTUS 2) If SCOTUS says OK, they couldnt hear future case Advisory Opinion Framework Rescue Army v Los Angeles (p28) 1) Ct wont hear a case just to overturn a statute litigants must have something at stake, or neither side will make good arguments 2) Ct wont decide something that they dont need to 3) Ct wont decide in broader terms than necessary 4) Ct wont decide at the insistence of one without injury 5) Ct wont decide if the construction of the statute is such that it can be decided in two ways. If there are 2 ways, Ct must chose Const. Way Statutes must have been intended to be constitutional Avoid other issues where possible? Ashwander v TVA (p29) Is the case quoted by Rescue Army (above). In Ashwander, Justice Brandeis stressed the need for a case or contr. Some State Courts have AO abilities, based upon state constitutions

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Constitutional Requirements for Standing 1) Concrete & personal Injury to Claimant 2) Traceable 3) Redressable Prudential Requirements for Standing 1) Ban on Third Party Claims Exceptions 1) Close Relationship (ie parent with childs right violated) 2) Other party is unable or unwilling to raise claim 3) Associations raising claim of a member 1) Must be an injury to member(s) 2) Must relate to purpose of organization 3) May not be necessary to have member instead of org. 4) Overbreadth (ie pornography example) 2) Ban on Generalized Grievances Taxpayer suits Exceptions: 1) Religious Cases. Citizens can question govt expenditures that either promote or fund religions as a 1st amendment right to separation of church and state 3) Zone of Interest Note: Claim = violation of a right Injury = personal to claimant APPLICATIONS OF STANDING ISSUES: Warth v Seldin (p30) s upset with housing codes Dismissed for lack of standing There were a number of s each with a different claim Minorities no claim, werent personally injured Builders no proof they were planning to build Homeowners Group no members rights violated Rochester taxpayers hard to trace PLUS not redressable w/o officials From Rochester named

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APPLICATIONS OF STANDING ISSUES (CONT.): Allen v Wright (p36) were parents of black school children in a dist being desegregated s claim IRS hasnt setup sufficient standards to deny tax exceptions to racially discriminatory schools Claim 1 blacks are stigmatized by granting of tax exceptions DENIED too broad Claim 2 The exceptions deny their childrens right to attend school b/c they Make the task of desegregated too burdensome DENIED not fairly traceable to he IRS Frothington v Mellon (p37) sued Secretary of the Treasury to stop payments under Maternity Act No standing as Interests of the taxpayers are shared with millions of taxpayers, so his personal interest in future payouts is remote. Flast v Cohen (p37) Frothington barrier should be lowered when someone is challenging as a Taxpayer under the Free Exercise clause of the 1st Amendment s were challenging aid to religious schools under Elementary and Secondary Education Act of 1965 United States v Richardson (p37) did not have standing to make CIA expenditures public if they were seeking to employ a federal court as a forum in which to air his generalized grievances against the government Schlesinger v Reservists Committee to Stop The War (p37) By holding the office as a Reservist, you couldnt be a Congressman Ct wouldnt hear case, saying s, while reservists, having a generalized citizen interest is not a sufficient basis for access to FedCt Concrete injury is indispensable Valley Forge Christian College v Americans United (p37) Fed Govt transferred property to Christian College s brought suit under Establishment Clause Judge Reinquist separated prudential and Constitutional Standing reqs. Ct said it was not an expenditure of $ to a religion. The federal govt Has a right to dispose of land Does this cut back on Flast, or make a onetime exception?

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APPLICATIONS OF STANDING ISSUES (CONT.): Lujan v Defenders of Wildlife (p38) s trying to force Secretary of Interior to apply ESA to US ventures overseas lacked standing, couldnt show injury Said someday they would return, not actual or imminent Must show concrete and particularized plans to visit Generalized injury not particular DoW says Congress provided for citizen suits Congress cant waive Constitutional Requirements for Standing Sierra Club v. Morton (Chem p59) s trying to stop construction of ski club on sold forest No injury, no ever used property in the past, wont miss it Combine Lujan and Sierra: If they visited it in the past & showed plans to visit again, would there be a Cognizable harm? On remand, Sierra Club amended its complaint saying its members had used the park, and they got standing United States v Students Challenging Regulatory Agency Procedures (Chem p60) Students challenged an act which increased freight rates Said it would discourage recycling because of additional costs Less recycling would harm the environment they enjoy in Washington DC Court said they have standing, because aesthetic injuries are OK In environmental cases United States v Hays (Chem p61) Only person residing in election district may challenge lines City of Los Angeles v Lyons (Chem p62) trying to stop police from using chokeholds Small likelihood the would be injured again! ( was able to still have a claim for damages ) County of Riverside v McLaughlin (Chem p63) s challenged county arraignment process as too long s had standing b/c they were currently under arrest, likely to repeat Trafficante v Met Life (Chem p66) Two white residents of an apartment building had standing to challenge Owners refusal of apartments to blacks because Civil Rights Act allowed Ps the right to live in a racial discrimination free society

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APPLICATIONS OF STANDING ISSUES (CONT.): Simons v Kentucky Welfare Rights Organization (Chem p70) s were clearly injured, but denied FedCt b/c lack of Redressability New IRS regulations didnt require hospitals to provide free care to indigents Ct said it is too remote to think denial of coverage was based on IRS changes Bennett v Spear (supplement) Ranchers claim decision by Secretary cuts back on their water Economic losses! Ct says citizen suits provision (compared to Lujan) doesnt waive prudential You still cant sue as a taxpayer on behalf of everyone Their recourse is through politics President must assure that laws are faithfully executed s are challenging an Act of Congress, SC cant interfere likely to be redressable, but no guarantee Zone of Interest concern the person raising concern has to be directly affected by statute. Ct says Zone of Interest requirement was waived by Congress! Ranchers are arguing over-enforcement, so their economic interests are valid within the zone of interest Postal example (case?) Law was passes to promote competition Congress allowed FEDEX etc. to have routes Postal workers brought suit, ct refused saying they were not in zone of interest Regents of UCAL v Bakke (Chem p73) was a white male not admitted into medical school Challenged UCAL setting aside 16 spots for minorities as Unconstitutional. Ct denied standing because no guarantee he would be admitted Pierce v Society of Sisters (Chem p 77) Catholic school was given standing to challenge a law requiring student to attend public school Standing was given as an exception b/c of close relationship between the school and parents who wished their children to attend it Eisenstadt v Baird (Chem p76) Mass law made it illegal for physician to distribute contraceptives to unmarried individuals SCt gave Baird standing as an exception saying unmarried people would be denied access to contraceptives, so they wouldnt be arrested, and couldnt bring a case on their rights to the Court

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APPLICATIONS OF STANDING ISSUES (CONT.): NAACP v Alabama (Chem p81) NAACP had standing to deny giving membership records to the State because its members would be affected Hunt v Washington State Apple Advertising Commission (Chem p81) Three part test for when an association may sue on behalf of its members 1) its members would have standing to sue on their own 2) the interests they wish to protect in the suit our interests germane to the organizations purpose 3) The participation of an individual member is not required. International UAW v Brock (Chem p81) D said hunt should be overruled, and members should bring class action Ct upheld Hunt requirements During Vietnam war, citizens brought taxpayer suits b/c no war was declared Ct wouldnt give standing, political questions!

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Ripeness deals with if it is this the right time to bring the case. The Supreme Court will not hear a case unless there is a past injury (still occurring) and an injury about to happen. However, see exceptions below APPLICATIONS United Public Workers v Mitchell (p45) Case against the Hatch Act, which stopped civil servants from getting involved in politics Goals of Hatch Act 1) Create a professional government 2) Stop bosses from forcing contributions Civil Servants brought suit and Ct dismissed b/c 1) no one had been prosecuted yet 2) No memos telling anyone theyd be fired Adler v. Board of Education (p45) NY law bans communists from working on Board of Ed Went through State Court system, ct held for Board of Ed SCOTUS took it and held for Board of Ed Why? Was it not ripe b/c there was a lower ct holding? Laird v Tatum (p45) seeks redress for unlawful surveillance of lawful public activity By the US Army -- Not ripe b/c it rests mainly on the challengers fear of future, punitive action based on results of the surveillance there was no present injury EXCEPTIONS TO RIPENESS: 1) Risk of Substantial Hardship ie. Teachers may lose jobs, aliens forced to make a choice Local 37 v Boyd (Chem p97) Aliens were forced to risk taking a job in Alaska. They may lose citizenship Court said case not ripe b/c it was hypothetical 2) Forced to make a choice between not doing something or breaking law Abbot Labs case When to start labeling cans when law may be unconstitutional Is the application of ripeness arbitrary? It appears to be

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Privileges & Immunities Clause 2 part test Needs to be a fundamental right Poe v Ullman law says you cant use pregnancy stopping contraceptives Not ripe no one prosecuted yet Socialist Labor Party v Gilligan (Chem p 101) Court dismissed challenge to state law requiring anyone on a ballot To sign that they promise not to try to overthrow the government No one had been prosecuted yet

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Mootness refers to when there is no way for the court to redress the particular plaintiff. For Example, 1) when the dies or 2) files for an injunction, voluntarily complies with it. Unlike Ripeness, courts are very liberal with exceptions to mootness. If a case is moot, the Supreme Court will not hear it. 4 Exceptions to Mootness 1) Class Action Suits Title IX casewomen at a university looking to get $ for female athletics Case was moot, they all graduated. Had they filed class action and someone from the class still attended, case would be OK Applications Sousna In class actions, case can continue w/o named At the beginning has to have an injury, then: 1) needs standing 2) Ripe at the time of filing 3) Certified class action at time of mootness 4) Members of class still suffering Franks Lessened need for certification at time of mootness Can certify after mootness, especially if the dist ct refused to Not only does class have standing to challenge denials & class continues to have standing w/o mootness 2) Capable of Repetition While Evading Judicial Review 1) Injury is of a relatively short duration It will typically be ripe (not moot) for a short time Not enough time for it to make it through system Applications Defunis v Odegaard (p44) DeFunis challenged UofWashingtons admissions policy Said it was racially discriminatory Lower court allowed Ps attendance By the time of SCt, he was a 3L, so case moot! Roe v Wade (p44) The normal 266-day gestation period is too short Pregnancy legislation will never survive mootness!

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2) Reasonably likely the injury will occur again to the particular person This is frequently stated as a rule, but not clearly applied ie, in Roe v Wade there was no discussion if the was planning another pregnancy 3) Collateral injuries Not moot if primary injury is done, but there are collateral injuries Application Person is found guilty and appeals, they had no prison time Not moot, b/c even though no prison time left, they lose right to vote! Duke Power Co. v Carolina Environmental Study Group (Chem p70) said Price Anderson Act was unconstitutional PA Act put cap on damages from nuclear accidents said deprivation of property value, right to a fair hearing gone said far too many ifs, plant hasnt even been built Ct found case ripe on collateral damages Decisions to build plant would depend on outcome Property values in doubt based upon outcome Suit for collateral injury of the uncertainty! 4) Voluntary Cessation by stops engaging in behavior complained of and moves to dismiss Ct will not dismiss if is in the position to act a certain way again For economy of judicial resources, resolve the case while its here EXCEPTION When Congress does away with a law to get rid of alleged Unconstitutional form If a case is dismissed for ripeness or mootness, the case can be brought again with different parties.

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If a case is dismissed for political question Thats It! The Courts will not hear a political case because they should be resolved by the political departments of government 6 factors that constitute a political claim (from Baker) 1) Textually demonstrable Constitutional commitment to a political branch 2) Lack of Judicially discoverable and manageable standards of resolution 3) A decision would lack respect to a political branch 4) There is potential for embarrassment to a political branch 5) Impossibility of decision w/o an initial policy determination of a kind clearly for nonjudicial discretion 6) Unusual need for unquestioning adherence to a made political decision The 6 elements are closely related, if any are present or intermingle with any of the substantive issues, the court refuses the case. These are typically for public relations by Congress or comity between Congress and the Courts. Baker v Carr (p47) The legislature didnt want to change the apportionment system since 1901 20% of the population (rural) controlled 60% of votes Impossible to change if political system wont change it! Ct: Just because it has to do with politics, it isnt necessarily a pol. Question s argue that apportionment is out of control and it isnt a Republican form of govt - asking court to order Tenn. Govt to realign itself says it is Congress duty to use Guarantee clause, not SCt That clause is left to the political branches of govt CT says Gaur Clause is a political question issue But used Equal Protection Clause SC has authority to hear an EPC case EPC was in the 14th Amendment and was made to give SCt jurisdiction EPC was to stop discrimination in states This case isnt about the lack of respect the political doctrine prevents clashes w/ Fed Govt, not state govts! Federalism Questions b/w powers of US Govt and States In Baker, Political Question doctrine is about separation of powers Affirms Colebrook (46) but says this wasnt raised under Guar.Clause If any of the six factors are involved, it is nonjusticiable In District Court: one person, one vote standard

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APPLICATIONS Luther v Borden [1849] (p 49) OLD LAW Issue of recognition of a newly elected govt in Rhode Island Two competing factions, each formed own Govt Constitution guarantees a Republican form of govt Congress is in charge of the Guarantee Clause When they accept Senators & Congressmen, They must accept them from the recognized govt Colebrook v Green (46) OLD LAW Courts wont get involved with redistricting it is up to each House Reynolds v Simms (p 47) Overturns Colebrook Creation of the one person-one vote standard Setting this standard provides a judicially manageable standard So no political question! Coleman v Miller, (48) Questions of how long a proposed amendment to the Constitution is open is a question for Congress 1939 case. Powell v McCormack (53) Rep. Powell accused of misconduct House refused to seat him after he won election in 1968 Speaker McCormack said Art 1 5 allows them to set own standards Powell says Art I 2 sets only 3 standards Court CAN interpret Congress section Congress only has authority to review the 3 standards Goldwater v Carter (53) Carter was going to abrogate treaty with China Constitution says President can treaty w/advice and consent of Senate Carter says case is nonjusticiable Court agrees saying issues is expressly left to two pol. Branches Each side can fight the battle with own resources Also, ct shouldnt get involved in foreign policy Ct never decided on merits: 4 votes for nonjust. 1 vote on non-ripeness (Carter didnt abrogate treaty yet) Brennan says it is just. & Pres has the power to abrogate

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Standing problem: Is there a concrete injury to Goldwater? No United States v. [Richard] Nixon (p54) SCt sustained the issuance of a subpoena to the President Nixon v United States Court will not decide if it was a valid trial it is up to the Senate Can the SC hear? Nixon They didnt try his case Senate We set rules Court try doesnt have to mean full trial sole only in the Constitution twice House sole power to accuse Senate sole power to try Political embarrassment to SC? Impeachment is only check on SC judges Policy issue: two trials if you make a decision on impeachment, you may face the case again in regular criminal trial Impeachment political trial Criminal Trial trial that can be appealed to SC Redressability Issue: Can you vacate an impeachment? Can a replacement be made Lack of respect for a coordinate branch Should SC sit in judgment on a judge?

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Since Martin v Hunters Leesee, the Supreme Court has held the power to review State Court decisions on appeal. This is, perhaps, a more important power than to review Acts of Congress as it insures that there is one proper understanding of the Constitution throughout the nation. Martin v Hunters Leesee (Ch p44) VA passed law to claim lands of British sympathizers Lord Fairfaxs property was taken by VA (Martin is heir) By the Peace Treaty of 1783, British kept properties VA ignores treaty and says Hunter has the land VA Ct of Appeals upholds, Martin appeals to SC Martin argues jurisdiction saying 1) Jurisdiction of federal treaty issues, Art III 2 2) Judicial Act of 1789 25 Does Art III apply? Art III 2 1 allows jurisdiction over Treaties Art III 2 2 gives app juris in other cases You have to see if Congress excluded his caseit didnt However, Art III 2 doesnt refer to State Courts must not have argued the point Does JA 25 apply? Is it a final judgment? YES From the highest court? YES Questioning a Treaty? YES Decision is against the Treaty? 25 applies


NOTE: If State Ct held in favor of treaty, no appeal! SC remanded case to VA Ct of Appeals with instructions to uphold treaty VA courts refused to saying JA 25 is unconstitutional, as it adds appellate jurisdiction from State Courtssecond SC trial on constitutionality Justice Story held it was constitutional: 1) Need for uniformity in interpretation of the Constitution need a single Constitution throughout country 2) Distrust of State judges petty regional/local grounds for finding against Constitution

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out-of-state judges not familiar with fed law 25 is only concerned with upholding federal law is it biased towards favoring the fed govt? if a judge favors federal interests, OK, no review if a judge doesnt, it is evidence that he may be anti-federal and a review is needed! It would be a disaster is there wasnt jurisdiction over State Courts! NOTE: Today there is a balanced right of appeal. Losing state claimant has as much of a chance as winners SC has juris over everything But they have the option of taking anything or nothing Cohens v Virginia (63 / Ch p45) Cohens arrested for selling DC lottery tickets Virginia found him guilty He argued that he had immunity b/c they were federal tickets VA arguments: 1) No appellate jurisdiction when State is a party only original 2) Martin was a civil case, this is a criminal case no juris! 2) Conviction should be upheld on merits SC claimed jurisdiction 1) Ignores original jurisdiction issue 2) 25 clause 3 applies because Cohens claims a commission 3) 11th Amendment denies federal juris when someone is suing another state - here it is a criminal conviction, Cohens isnt suing a state Marshalls arguments: 1) Need for Uniformity (as in Martin) 2) Distrust of local judges a step further Federal agents (tax collectors) could be jailed by local judges If SC didnt have juris, there would be no way for them To do their jobs! People need to be protected from local Prejudices

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Cooper v Aaron (1958, p25 / Ch p46) Judicial department is final arbiter of the Constitution Ark Gov Faubus against public school desegregation Said he was not bound by SCt decision ordering desegregation SCt said it is emphatically the province and duty of the judicial dept to Say what the law is Also, every state legislator. Executive and judicial officer takes an Oath to uphold the Constitution

NOTE: Holmes quote on p 65 as a wrap-up on importance of Marbury v importance of Martin & Cohen Martin & Cohen hold nation together: I do not think the US would come to an end if we lost our power to declare an Act of Congress void. I do thin the Union would be imperiled if we could not make that declaration as to the laws of the several States.

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In 1914, SCt got juris over all cases, not just those where fed law declined. Theory of adequate and independent state grounds grew.. If a judgment could stand on the state grounds alone, SCt wont take case. Application of Adequate State Grounds Ives v Buffalo RR Co. Ives injured by RR in 1911, missed work Went to NY State Court to use new Workmans Comp At WCA did away with tort cases s only had to show an injury, not negligence NY struck down law saying denial of Due Process to RR 25 was in effect, and since NY struck down fed law, SCt had juris BUT NY said it also violated NY State Constitution. SC cant take case b/c they cant affect outcome. Nothing would change, no case or controversy When decided on independent and adequate state grounds The outcome is nothing but an Advisory Opinion Application of Independent State Grounds Mitchell v Long (71) MI courts says deputies had no authority to search the trunk Searches violate 4th Amend AND MI state constitution Justice Conner said the state grounds werent independent 1) The MI courts opinion of their state law was based on a Misinterpretation of Constitution 2) the and was ambiguous SC can affect the judgment! Prior to Long, SC assumed every decision was independent Now, assume it is not independent unless it is clear SCt upheld Longs conviction Adequate and Independent are two distinct doctrines State Courts were routinely just giving lip service to State Constitution to stop appeals to Supreme Court Maryland v. Baltimore Radio Show (p 68) A denial of certiorari is not a decision on the merits. In merely means less then 4 justices deemed it desirable to review Relying on the lower court as using sound judicial discretion

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Herb v Pitcairn (p69) Sct wont review state judgments with adequate & independent state grounds Sct not allowed to issue an AO, if their decision is merely an AO, no review Williams v Georgia (p74) A purported state ground is not independent and adequate in two instances 1) where the circumstances give rise to an inference that the state court is guilty of an evasion an interpretation of state law with the specific intent to deprive a litigant of a federal right 2) where the state law throws such obstacles in the way of enforcement of a federal right that it must be struck down as unreasonably interfering with the vindication of such rights Henry v Mississippi (p74) applied for a waiver SCt reviewed denial suggesting that state procedural grounds are subject to broader SCt review than substantive grounds

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Some Supreme Court decisions have been unpopular with Congress, so they have taken steps to reign in the courts jurisdiction. For example, in the late 1960s, as a response to the Miranda decision, laws have been introduced to stop SCt from taking cases where Superior Courts have allowed evidence, or cases involving abortions. These moves are made frequently. A current move denies jurisdiction for the SC to hear death row appeals from AppCts denying 2nd trials. As Congress has the power to determine the Supreme Courts jurisdiction, the Court is obliged to follow the laws passed by Congress if they are constitutional. While today it is unlikely that a decision like Ex Parte McCardle would be passed, it is often quoted in setting the bounds of Congressional influence over the Supreme Court. Ex Parte McCardle McCardle jailed for his opposition to Union Army occupation Charge was subversive libel He received pardon from the President His motion for habeas corpus was denied Appealed to SC under JA of 1867 arguing Reconstruction Law uncons. Congress passed JA of 1868 repealing this exact case Ct denied case saying no jurisdiction Congress has authority to define jurisdiction. Access cant be denied to the Supreme Court and it isnt! Had McCradle filed an original writ, hed be heard APPLICATIONS Mississippi v Johnson (p 78) SCt lacks power to enjoin the President Ex Parte Yearger (p 78) Yearger invoked habeas claim as original jurisdiction Didnt use JA of 1867, so 1868 appeal didnt apply Judgment averted, because he was released Plaut v Spendthrift (Ch p53) Cong. extended SoL to include a decided case Ct said Cong cant reopen closed cases Jurisdiction has to do with the moment Jurisdiction can be stripped if jm isnt made Constitution gives judiciary the power to decide cases

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United States v Klein A fed statute allowed people to keep property if they didnt aid rebellion Klein was using a Presidential pardon to prove nonparticipation Congress passed a law saying pardon was proof of participation Congress interfering with intention to disrupt a judgment This law was unconstitutional because of separation of powers 1) President has function of giving pardons 2) The law would change a rule of decision by courts In Ex Parte, Congress was stripping a class of appellants In Klein, Congress was affecting specific appellant under the guise of a jurisdictional statute, Congress changing substantive rules of decision. Rule; Congress cannot change a holding of the Sct in cases moving through the system Felker v Turpin (p 78) 1996 Antiterrorism and Effective Death Penalty Act limited SCt app. Rehnquist held in constitutional, because, like Yearger, original Jurisdiction was still available in SCt.

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Many issues dont make it to court, therefore the study of Constitutional Law is more than reviewing Constitutional litigation. The Supreme Court is the final arbiter of the Constitution, true but it only has that role when it gets the chance oftentimes it doesnt get the chance. McCullough introduced a broad notion of federal power and demonstrated that federal interests must be upheld in the relationship between the US Govt and the several states. McCulloch v Maryland is to federalism as Marbury is to separation of powers. Background During the Washington administration, Cong created a Bank of US Congress debated whether they had power to create it James Madison said 1) the power wasnt enumerated 2) if this concept is approved, it is essentially the end of the Constitution Congress approved by a narrow majority, Senate near unanimous GW asked Hamilton & Jefferson to write opinions. Jefferson said GW should veto by Madisons arguments 1) It is beyond the power of Congress, veto it 2) If, however, GW thinks Congress has the power he MUST approve it, Pres can only veto if Cong abuses power A Presidential veto is a Const. safeguard, not discretionary Hamilton argued for the Bank 1) Congress has the power 2) It would be good to have a Bank of the US GW signed the bill and gave the Bank a 20 year charter 20 years later, the charter wasnt renewed As President, Madison saw problems of War of 1812 Convinced Congress to charter a 2nd Bank of the US (BUS) States not happy felt BUS controlled regional economies Maryland passed a tax on the BUS ISSUE 1: Is Bank of the US Constitutional? 1) Is there a prohibition that stops Congress from having a Bank? NO 2) Is there a power in the Constitution that allow a Bank to be formed? 1) Is there express power? NO, Nor can Congress form a corporation 2) Can there be implied power? 1) HISTORICAL ARGUMENT The first Congress formed a Bank They wrote Constitution, knew what it meant Counter-Argument: It was a divided Congress

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Idea of chartering Corporations was Withdrawn at Phil Convention Marshall struck down JA of 1789 same! 2) TEXTUAL ARGUMENT Congress has power to levy tax, borrow, pay, etc And needs to do what is necessary and proper to Enforce its powers (Art 1 8) Also, if they meant absolutely nec it was Redundant to add proper Counter-Argument: Is a Bank necessary? MD says necessary = necessary, Necessary convenient 3) TELEOLOGICAL/PRAGMATIC ARGUMENT Cant read the Const to the point of unworkability Reading it as absolutely necessary will render Congress ineffective Govts have sovereignty, need to function 4) CONTEXTUAL ARGUMENT N&P clause is in 8, a that adds power to Cong 10 uses the phrase absolutely necessary so there are degrees of necessary! 5) ANALOGY ARGUMENT Const. Gives power to make post offices, but doesnt say punish people for stealing mail If it is flexible enough to imply power there that No one argues against it, There is implied power! NOTES: Implied powers are broad. SCt determines was nec means Cong. Has discretion to decide what is nec p.954 very controversial Marshalls pretext clause argument You cant take power and use it beyond its power. ISSUE 2) Is MDs tax Constitutional? 1) The power to tax is the power to destroy The state could tax the Bank to extinction Which would give state power of Fed 2) No taxation without representation MD can tax its own citizens, answerable at the polls US would be taxed without representation

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NOTE: Whenever a state passes a law placing a Burden of creating the ends on out-ofStaters, the SCt calls in unconst. 3) Federal vs State Interests Federal interests are sovereign to States This is not a question of taxing a MD business It would retard federalism to allow the tax 4) Slippery Slope argument If MD taxes the Bank, they could tax the mail, etc. Counter-Argument: The mint/PO are govt agencies, The BUS is a private corporation (51% US own) Counter to the Counter: The 49% owner dont live in MDsee #2 NOTES In this part of the opinion, Marshall reasons by STRUCTURE & RELATIONSHIP He doesnt refer to text, but looks at Fed Govt As established and its relationship with states Finds the tax would be incompatible with govt structure MD does not have th power to tax this way, but they Can still charge property tax in common with Other real property Cant single out tax on banks property

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Article I 8 of the US Constitution gives Congress the power to regulate commerce among the several states. Congress uses the Commerce power to regulate societal and economic goals of the country, and it is perhaps the broadest power of Congress. The Clause came about because of problems within the Articles of Confederation. States with ports starting imposing tariffs on goods destined for other states, causing economic problems and interstate strife. Through the Commerce Clause, Congress was granted the power of regulation, while state power has become somewhat restricted. There are two distinct lines of cases that define Congress Commerce Power prior to 1937 the line that provides the source for Congress control over local activities and a line of Congress control over the channels of commerce. The local activities line of cases include the EC Knight direct/indirect test which was revised in Shreveport as a substantial economic effect test. The Channels of Commerce line includes cases such as Champion and Hoke which provided that Congress power is plenary and Swift which developed a stream of commerce concept. There is a clear distinction between these lines of cases! The power to regulate the channels of commerce does not deal with local regulation. Today, the Court has moved away from deeply reviewing the scope of the commerce power. The standard the court uses is deferential to Congress judgment as to its power and on all but one recent occasion, the Court has upheld whatever law Congress has passed under its commerce clause. That one case, US v Lopez, has not yet yielded a line of cases signaling an active court in the area of the commerce clause. Under todays deferential test, Congress has validly used it commerce power if Congress has determined that the regulated activity either 1) substantially affects commerce, or 2) is actually a part of commerce AND the congressional determination to pass the law is rational AND the chosen means are reasonably related to reach the rational end. Congress is not normally required to make formal findings between the activity regulated and commerce in order to invoke the commerce clause (Lopez), but if Congress does not have any findings, the Court can determine whether it feels there is a connection.

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The development of Congress power over Commerce: Gibbons v Ogden (Chem p175) Livingston and Fulton granted Ogden a franchise to operate a steamboat They had monopoly in NY to operate ferries in NY water Gibbons had a federal license to operate a competing steamboat Gibbons seeks injunction saying state law violates fed law Ogden argues that Fed law is unconstitutional Does Congress have power to give this license? Ogden argues no, Congress has limited power Marshall says yes, navigation is part of commerce The Commerce Clause requires that the law deals with 1) Commerce 2) among several states Congress power is plenary The power to regulate means Cong can do whatever it wants Extraordinarily broad definition of powers! Federal law is constitutional; Gibbons license is OK 2) Is NY law constitutional? Does it conflict with a statute? Yes, the license that was granted Did Congress have power to grant it? Yes, NY law is unconstitutional. Does it conflict with the Constitution? Is there a prohibition in the Constitution? No. The Daniel Ball (Chem p177) Congress can regulate and issue licenses to ships As long as they have goods that either came from another State or were destined for another state, because unsafe Ships in intrastate commerce can harm ship in interstate. Direct Effect on Interstate Commerce (use for manufacturing cases) U.S. v E.C. Knight Co. The Sugar Trust Case (p164) Govt tried to set aside, under Sherman Act, a merger The new company would control 98% of the US sugar Sct defined commerce as a stage of business, specifically, Court said MANUFACTURING is not COMMERCE Congress/Executive branch has no power to interfere Congress has power to 1) regulate commerce 2) to regulate local activities with a direct effect on commerce Here, there is a strong effect, but not a direct effect

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A direct effect would be if the monopoly was formed for the purpose of monopolizing commerce, not manufacture Addyston Pipe & Steel Co v US (p165) Ct sustained action against 6 iron pipers b/c they banded together to not only restrain manufacturing, but to affect prices in commerce Northern Securities Co. V US (p 165) Ct set aside an action by Northern to acquire 2 competing RRs Holmes: Commerce relies on population & transportation US v South-Eastern Underwriters Assoc. (p 166) The business of insurance is commerce Substantial Economic Effects Houston E&W Texas RR Co v US The Shreveport Rate Case (p166) SCT sustained Congressional effort to order the RR to fix rates that Did not discriminate against in-state traffic. Congress has authority to regulate matters having a close and substantial relation to interstate commerce Substantial Economic Effect test RR Commission of Wisc v Chicago, Burl. & Quincy RR (p167) Ct upheld ICO order to increase intrastate rates over state maximums Citing national impact in commerce of intrastate rates Southern Railway Co. v. US (p167) Court sustained penalty jm against RR for defective couplers On entirely intrastate cars. Court said it could be regulated because all RR tracks are highways of interstate commerce It is OK that this was a safety violation b/c Congress has to assure The safety of all employed in interstate commerce Stream of Commerce use when regulating channels of commerce Swift & CO. v US (p 168) Under Sherman Act, US going after meat packers for price fixing Cattle being auctioned in Ill, meat pacers say no effect on interstate SCt upheld, saying it is just one stop in the stream of commerce An interruption in the flow, as the cattle are heading elsewhere.

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Stafford v Wallace (p 168) Local sale of livestock subject to regulatory control, as it Substantial impacts the stream of commerce Local problems in changing of title can effect the flow to Packers and dealers. Congress Motive Irrelevant as long as it is commerce Champion v Ames The Lottery Case (p169) Champion indicted under Federal Lottery Act of 1895 that prohibited Transportation of lottery tickets. Champions 1st Argument Cong has power to regulate commerce not prohibit SCt says Congress needs to facilitate comm. by any means The power to regulate is plenary Champions 2nd Argument Lottery tickets arent commerce SCt says people are willing to pay for them, they have value Champions 3rd Argument Congress is doing this to stop gambling & they dont have police power SCt says the motive is irrelevant DISSENT: Prohibiting Lottery tickets is not nec & proper Hipolite Egg Co v US (p172) A shipment of eggs was confiscated b/c they lacked a label said that they passed out of stream of commerce before seizure SCt - To give immunity at point of destination would defeat purpose Hoke v US (p 173) Mann Act prohibited shipping of women for immoral purpose Sct it is still transportation and can be regulated Caminetti v US (p 173) Also upheld Mann Act Dissent: There is a difference between White Slave Traffic and Other immoral purposes Commerce Power Over Local Activities Hammer v Dagenhart The Child Labor Case (p173) Congress passed an act to stop interstate shipment of shirts manufactured By child labor (mainly affecting N&S Carolina) SCt struck down Act as unconstitutional

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Arguments: Evil in Commerce bad argument You can prevent the prostitution/gambling in earlier Acts Here, the child labor already occurred National Policy Argument In Mann & Lottery Acts, Cong was stopping something Which the states already had a uniform policy against Here, some states dont regulate child labor Congress, therefore, is choosing between two competing Economic theories, hiring children for a lower COGS or Not hiring children. In doing so, Congress is reaching into the power of the states Commerce Clause is not meant to create barriers to stifle Interstate commerce DISSENT: Holmes: Its OK to regulate food, but not child labor? This case was overruled in 20 years Railroad Retirement Board v Alton Railroad Co (p177) Court voted 5-4 to overturn legislation requiring Alton to Setup a compulsory retirement and pension plan First time Court didnt uphold a law regulating RRs A.L.A. Schechter Poultry v US The Sick Chicken Case (p178) Challenge to the National Industry Recovery Act as uncons. It was a misdemeanor to not pay fair wages, etc Schechter was a local NY poultry house with no exports 96% of NYs poultry was from out of state Claimed govt couldnt control them Ct strikes down NIRA, Schechter didnt have direct effect on commerce! Poultry market would be stable w/o them US said SCt should consider Depression and why NIRA passed HUGHES: Extraordinary conditions do not create or Enlarge constitutional power. CORDOZA: There is a view of causation that would Obliterate the distinction b/w what is national and Local in the activities of commerce. Carter v Carter Coal Co (p180) After Schechter, Roosevelt asked for Bituminous Coal Conservation Act of 1935, regulated hours of coal miners 15% tax on all coal unless Coal Co recognized unions and paid decent wages. If they did, 13.5% reimbursement. SCt said this was an invalid tax:

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1) Not for purpose of raising money 2) Local activity related to manufacturing, not commerce Govt says a strike would be catastrophic to commerce SCt: labor trouble is indirect Congress has local control if it needs to protect interstate commerce NLRB v. Jones (p 185) Jones fired workers for organizing a union NLRB issues an injunction against firing Jones argues that govt cant legislate wages at place of production This would be the direct/indirect framework And wages are indirect impact on commerce 1) Manufacturing is not commerce 2) It is a local activity, with indirect affect Govt argues that it can regulate local activities 1) Labor is part of the Stream of Commerce (Swift) 2) a) Under direct/indirectthe impact is direct 2) b) Substantial Effect, however, should be the rule (Shreveport) Ct says a strike would be immediate and catastrophic -- And immediate effect would be direct -- Catastrophic means it would have a substantial effect Congress always had the ability to legislate railroads, but cases Such as Southern said that it sometimes was nec to Regulate local railroads for the purpose of safety of those Employed in interstate RRs. Therefore, safety can be legislated This deals with the safety of ees involved in manufacturing The Commerce Clause was supposed to facilitate interstate Commerce. It can affect local manufacturing if it needs to Protect the regulations of interstate transportation if Congress Can show an immediate catastrophic effect. In Jones, it is not entirely clear WHY Congress used the channels of commerce argument, but apparently, the court felt it was pointless to argue whether something was a direct or indirect effect. After Jones, Congress used its broadened powers to pass the Fair Labor Standards Act (15(a)(2)), requiring companies creating goods for interstate commerce to pay a minimum wage and overtime. In Darby, the court finally decided to get specific as to what its standards would be. US v. Darby (p 191) Darby wants to challenge Congresss authority to set labor rates and shipment of goods. Darby is a local board manufacturer, selling goods locally 1) Argues that Hammer allows local companies to set their own

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economic, competitive policies. Congress is siding with Northern states, who recognize unions, over Southern. 2) Argues there will not be an immediate catastrophic affect on interstate commerce Ct says Hammer should be overruled 1) Return to Champion, saying motive doesnt matter 2) No evil in the board, but not a good arg anyway 3) Congress can use its power however it wants to, it is plenary -- it can prohibit states from using intrastate commerce to an unfair advantage over interstate commerce 4) You must pay minimum wage even if you have no intention to engage in interstate commerce 5) Direct/Indirect is no longer the test! The effect has to be substantial to justify regulation What is substantial? The Aggregation Theory (used in Filburn) Dont look at specific Look at activity being regulated LABOR is being regulated 1) If labor is cheaper in one part of the country, the flow is affected to that area 2) If people make substantial wages, they buy less in interstate commerce The Super-Bootstrap Argument from Darby 1) Congress passed 15(a)(1), a law that requires fair competition 15(a)(1) is justified in the Constitution 2) Congress than passed 15(a)(2) to help regulate 15(a)(1) Congress can pass 15(a)(2) to protect its power in (a)(1) Because Congress originally passed a law to prohibit interstate Shipments of goods made with a certain standard that was justified by the commerce clause. Then Congress can ban the Standard all together because it has to protect its power Prohibiting the shipment of goods Ex: it is easier to ban the standard then set up Checkpoints at every state border The Main Points of Darby 1) Hammer is overruled and plenary power is reinstated The test is now substantial effect 1) on commerce 2) on Congress power to regulate its power 2) Federal Power to regulate its own power is a different analysis than federal power over local activities

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The Aggregation Theory Wickard v Filburn (p 189) Filburn grows in excess of his allotment of wheat under the Agr.Adj.Act He distinguishes Darby he is not in commerce at all, it is HIS wheat! Filburns arguments: 1) His growing was not an economic activity 2) It is was, it had no affect on commerce Govt says if he grows the wheat he isnt going to buy any in the market, The national market demand used to create the allotments under The Agricultural Adj Act will be decreased by homegrown wheat. Ct says 1) By withholding wheat from mkt, the mkt is affected 2) Aggregation wheat is being regulated, not just s 239 bushels If EVERYONE grows his or her own wheat, there is no market National Market Theory Broad interpretation of affect, it now Includes things never intended for market at all! After Darby (and Wickard), there is no longer a distinction on lines of cases, now the Congress can pass laws on production that has a substantial affect on commerce. In the 1980s, the SCt dropped substantial and just looked for an affect. Today, the Court has added back the substantial emphatically through Lopez. NOTE CASES United States v Lopez (p142) Cong passed a law preventing any individual from knowingly possessing a firearm in a school zone CT said the law doesnt regulate commerce, nor is the possession in any way connected to interstate commerce Ct even overruled contention that aggregation theory should apply; The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Perez v United States (p196) Cong passed a criminal law preventing loan sharking Loan sharking is ordinarily an interstate activity And local enforcement is hard to achieve with I/S nature Perez threatened a butcher who he had made a loan to. US is not alleging any I/S activities at all, no evidence of it! But the law was passed b/c of the nature of loan sharking

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SCt said that even a transaction like this is an intrastate one The act, like in Darby, regulates a class of activities in loan sharking which could affect interstate commerce DISSENT (Stewert) we have now carried it too far! Citing Holmes, Commerce relies on people, people come from Marriages, can we regulate marriages? United States v Bass (p198) Bass convicted of carrying firearms against the Omnibus Crimes Control and Safe Streets Act of 1968 Guns were not involved in commerce Conviction was overturned Statute said it was an offense on someone who receives, possessed or transport a firearm in I/S commerce Crim Statutes are read strictly, the possession has to be in I/S Comm Maryland v Wirtz (p199) 1961 amendment to FILA applied to ees in private industry SCt found it justified under Unfair competition theory of Darby And Jones & Laughlin labor dispute theories Trivial Impacts? State Autonomy? Hodel v Virginia Surface Min & Recl Assn (p200&208) 1977, Cong regulates strip-mining says Act regulates use of private land in state SCt rejects saying Congress can regulate activities locally that may Affect the environment of other states if it can make a good arg. No longer nec to have substantial impact. The Commerce Clause Theory of Civil Rights Cases As part of the Civil Rights Act, a motel was defined as being in Interstate commerce, with a restaurant the food had to come Through I/S commerce Congress has power to regulate social/moral problems Under the pretext of the Commerce Clause Heart of Atlanta Motel v US (p203) Atlanta motel challenged Civil Rights Act b/c it didnt want to Rent rooms to African-Americans Motel arguments: 1) Congs purpose was not commerce, it was policing

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SC motive doesnt matter This is important b/c previously they have only said That Congs power was plenary in channels cases It was now extended to local activities cases 2) Cong had no evidence that hotels affect comm. Hotels have to abide by Act because transportation and Accommodations are a part of commerce That Cong was regulating a moral issue is no matter They can regulate commerce and transportation Racial discrimination is a nationwide issue Congress only needs rationale basis for passing the law based on testimony of racial inequality 1) Law needs a legitimate state purpose 2) Law must promote this purpose Congress can make irrefutable presumptions of fact. Katzenbach v McClung (p203) Ollies Barbeque only offered take-out service to blacks $70,000 was spent in previous year on food from out-of-state This is enough to say they are involved in interstate commerce Aggregation theory of Filburn! The Ct further found that Congress rationally concluded that Discrimination by restaurants had an impact on commerce BBQ argues: 1) The dont offer in IS comm.! They are not near highway 2) HofAMotel is a channels case, this is local activity 3) Just b/c food has moved in comm., it isnt being regulated discrimination is! 4) No evidence they affect commerce 5) they are entitled to a hearing as to whether they affect SCt: Plenty of evidence that hotels, etc affect commerce Cant have a hearing for every case -- not going to 2nd guess Congress judgment Congress can make the leap of saying the affect I/S comm. Without a case by case determination State Autonomy and the Commerce Power National League if Cities v Usery (p 206) Congress only striking down of a federal statute pre Lopez fed law force states to follow Fed Labor Standards Act The later-overruled Usery test: Congress could not employ its commerce power to:

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1) impinge on essential attributes of state sovereignty OR 2) directly impair State Ability to structure integral operations in areas of traditional governmental functions UNLESS 3) the nature of the federal interest justified state submission to the federal standard Question became What are traditional govt functions? United Transportation Union v Long Island RR Co. LIRR says they are a State owned agency, not subj to regulation US argues under US v CA they can regulate SCt running a RR is a traditional govt function EEOC v Wyoming Wyoming set a mandatory retirement age Ct upheld EEOC Remember Blackmuns concurrence in Usery Reinquist wrote a 3 part test Blackmun was 5th vote by a different standardbalancing test Balance fed and state interests 1) Here, the EEOCs interest is greater when balanced in Usery, min wages on every ee is a major budget item it is a different than min.wagepeople stay on longer 2) State compliance is necessary in the overall scheme of things Fed Interest is legit would system upset if ignored? In Usery, no. Here, yes. This is based on discrim. It doesnt matter WHO discriminates, it is enough to exist 3) Game Warden sare not a critical govt function. Garcia v San Antonio Met Transit Authority Garcia wants his overtime Garcia argues LIRR RRs are traditional govt function SCT goes farther and overrules Usery: Problems with Usery: 1) Practical Problem what is a traditional function? Blackmun made a list of traditional and non Lists were practically the same Unworkable Test! 2) Theoretical Problem Political Question Now, State Autonomy is trusted to the political system South Carolina v Baker (212) Fed govt amended F.IncTax to tax bearer bonds States say NO! SCt Congress can do it, it wasnt discriminatory

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The only times when Courts would overrule an Act affecting a state: 1) deprivation of a states right to participate in the national political process (ie. Civil War anti-slavery laws) 2) Legislation which singles out a state TWO LINES OF CASES: McClung line SUBJECT MATTER CASES What is the Subject Matter of Federal Commerce power Analysis of the clause itself (What is comm./local act) National League of Cities Line RESTRAINTS There are external restraints on the Commerce Clause 10th Amendment When looking at a statute consider the source of power and any prohibitions Application: I. Source of Power the commerce clause 1. channels of commerce 2. local activities 3. protect instrumentalities of commerce 10th amendment does it define scope or a prohibition?? Usery uses it here, as does Dunlap II. Prohibition the 10th Amendment New political mvmt puts it here return to state power

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Does the Constitution place a restriction on Congress to regulate states as it regulates corporations? Looking at Garcia, the answer appears to be no. However, Justice Blackmun feels this question is a fundamental part of the process states need to show that they were either excluded or discriminated against in the law. Still,. The answer still seems to be no unless the state is regulated just because they are a state. (State qua State legislation). Congress requiring states to use their legislature or police power to regulate is a violation of federalism. You cant do it now by a 5-4 decision in NY v US, but this could change with the next judicial appointment. Currently, Congress may use its commerce power to regulate the states themselves if Congress complies with the following rules: 1) The law applies equally to people and to states, or 2) when the law applies solely to a state, it must a) do so with unmistakable clarity, b) refrain from singling out a state, c) does not deny participation in the national political process, d) does not interfere with the states lawmaking process (by forcing a states legislature to enact a law). New York v United States (213) Cong passes the Low-Level Radioactive Waste Policy Amendment Create 3 incentives 1) Monetary Incentives a) takes fees from state w/o policy and gives it to states with a policy 2) Access Incentives a) States that comply can refuse non-complying state nuclear waste, or charge them a higher fee (This makes the fees non discriminatory) 3) Take Title Incentive If there is no plan, state must take the waste and reimburse cost for taking SCt the 3rd initiative is unconstitutional: There is a choice to comply or not to, either one alone is unconst. Congress cant order states to take title Congress cant order states to comply This doesnt fit the constitutional scheme 10th Amend doesnt prohibit nuclear waste 10th Amend is a truism You have to see if the power has been delegated to Fed P215 The Court makes historical arguments (Hamilton) Framers did not intend govt to regulate states P214 OConnor distinguishes this case Petitioners do not contend lack of power to pass bill

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Under Supremacy Clause, Cong can preempt state legis. Here, Cong is directing the states TO regulate in an area In Garcia & Usery, State Was employer Cong isnt regulating directly no accountability States may have to pass unpopular laws State says they HAD to Fed says they didnt have to in that way Federalism is about the people and accountability In doesnt matter that NY Reps voted for it They cant give power they dont have States may have wanted the law, but they cant give Congress the power Constitutions are for the people State govts cant waive the peoples rights Printz v United States (suppl.11) Required Justice Dept to setup a background check before someone Buys a handgun. Local officers had to enforce checks while waiting For Fed Dept to go online Printz arguments: In NY, Congress was instructing legislature Here, Congress is instructing executive branch to enforce law FERC v Mississippi (Suppl.16) US cant compel states to influence legislation He orders were addressed to a state US v Mississippi Ct upheld Congs power to have a state engage in review of utilities Fed could have preempted and required the to consider fed policy

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Overview of the history of the Dormant Commerce Clause. If an area of commerce legislation that may affect interstate commerce is dormant (ie Congress hasnt acted on it), do the states have power to regulate in that area? Gibbons v Ogden (p261) It matters under which clause a bill was passed. Marshall likes the argument that when Congress was granted its Commerce Clause, it prohibited states from affect I/S Comm. But he never endorsed it, so its dictum It was possible to decide this case on purely statutory grounds The State Law was unconstitutional 1) Purpose of 1793 Act was to stop states from passing laws against out of state pilots. State Statute had to fall to fed law By ruling on narrow grounds, it allows Congress to pass a revised law Or it allows future courts to build on this with new facts and controversies Exercise of the police power. Wilson v Black Bird Creek (p263) Wilson blew through a dam blocking a creek Citing Gibbons, he said dam affected I/S Commerce 1) The Dam is unconstitutional b/c a) It regulates I/S Comm b) Affects/interferes with I/S Comm CATEGORIZATION A) Power to regulate I/S Comm B) Exercise of police power by a state -- the dam prevents flooding -- wipes out mosquitoes NOT PASSED FOR COMMERCE Need to BALANCE under all circumstances of this case This is a sleepy creek, not Hudson River! It is a police power that happens to affect I/S Comm Occasionally a Wilson wants to navigate, big deal! With Wilson, States are allowed to pass policing laws that may happen to affect I/S Commerce, and the courts will overlook them. After Wilson, the SCt turned, they started to ignore balance and routinely upheld police power, Cooley changed things, it said sometimes States might regulate I/S Comm, with a direct/indirect test

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Cooley v Board of Wardens (p265) PA passes a law forcing the hiring of local pilots to navigate PA waters The ships are in I/S Comm Ct: States do have some authority to regulate I/S Comm although Earlier courts said no The court came up with a new test: States can regulate if subject matter is amenable to local regs. But who decides when it is no longer local? 1) Congress may pass a law 2) Individual basis (ie. All ports are local) states must have the power to regulate, if they dont then law is unconstitutional Now, Congress may authorize states to violate DCC Eventually, this case was used for a direct/indirect test States may regulate some IS Comm, as long as it is indirect The Application of the law was very arbitrary Southern Railway v King (1910) GA law: trains had to slow down and blow whistles at intersections SCt said it was constitution, indirect effect Seaboard Air Line v Blackwell (1917) Same law in GA argued that it doubled the length of the trip direct effect! BEGINNING OF MODERN BALANCING TEST DiSanto v Pennsylvania (p 269) PA wanted to stop travel agents from engaging in intl trade People were putting their $ in travel accounts instead of banks PA decided to regulate by charging a $50 license fee SCt struck it down as a direct effect only charging intl agents! Stone/Holmes/Brandeis DISSENT! Characterize it as indirect for sake of argument Cong could have regulated, but they didnt CC is Dormant That means that the states can regulate The Const. cant stop states from attempting to halt fraud! Cited Smith as indirect this is the same, if not less direct The distinction is incoherent when the court likes a law, They say indirect, dont like law, its direct All variables must be considered? What is the effect on the flow of commerce? This rule would help

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There are two types of approaches to Dormant Commerce Clause Cases depending upon whether the State Law under review is discriminatory towards out-of-state interests or non-discriminatory. DISCRIMINATORY APPROACH STRICT SCRUTINY (The Dean Milk Test) The Court Asks: 1) Is there a compelling (legitimate) state interest? [ENDS TEST] 2) Are there non-discriminatory alternatives? [MEANS TEST] The court can then strike down a law if it fails either, but they are not independent the means depends upon the ends NON-DISCRIMINATORY APPROACH (The Pike Test) The Court Asks: 1) If the law regulates even-handedly -- if not, use the Dean Milk test 2) If the law promotes a legitimate state interest -- Use the ends analysis, not strictly 3) If the burdens to I/S Comm are merely incidental -- incidental means unintended, not trivial! It is related to, but not a part of, the purpose Then the court balances: The Statute is Const unless the burden on I/S Comm clearly Outweighs the putative local benefit OVERVIEW EXAMPLES Discriminatory Buck v Cucandal WA denied a bus route/license on a route already served State was trying to protect comps. From competition Not a legitimate state interest Bradley v Ohio State turned down a route b/c roads were crowded Three ways a Statute can be discriminatory: 1) FACIALLY Maine v Taylor court upheld b/c no alternatives 2) DISCRIMINATORY IN AFFECT Hunt v Washington Apple Apple grading system is OK But upon review it disadvantaged OOS interests 3) DISCRIMINATORY IN PURPOSE Bacchus Imports v Dias The plant not taxed by HA was only Native to Hawaii!

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Discriminatory Applications Philadelphia v New Jersey (p271) Everyone agrees there is a legitimate state interest, NJ running out of landfill space! I. It is a facially discriminatory statute apply the Dean Milk Test 1. Definitely a strong state interest 2. There are alternatives a. State wants to promote environmental and health issues by reducing toxic waste in landfills b. other ways to do this: 1) limit # of landfills 2) restrict certain toxic items 3) require compacting/incineration 4) recycling DICTA: states cant protect their people at the expense of others We exist in a national economy The burdens must be imposed evenly States are not the economic unit, the US is. States shouldnt compete with regulations. The law was virtually per se invalid NJs last argument is to uphold its quarantine laws They are legitimate during a crisis Distinguishable? -- quarantines are temporary -- they destroy local hoof in mouth cattle, too problem here is the state tried to isolate itself Maine v Taylor (p276) There is a parasite problem going on it doesnt exist in Maine Maine bans importation out of state bluefish Similar to the Starling & kudzu problems no natural predators 1. Strong State Interest 2. There is no other way for state to address this DICTA: Stevens the burden is on the state to prove this The state needs to show they didnt pass law casually the protective principle unclear of alternatives, but burden is on person upsetting balance

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Hughes v Oklahoma (p295) OK banned the export of minnows 1. Compelling State Interest 2. If purpose is to stop over harvesting, there are other ways 1) set limits on what can be taken 2) limit ways in which they are taken 3) dont discriminate on who can take them DICTA: The whole cost of protecting a resource cannot be Placed on out of staters. DISCRIMINATORY TAXES Chemical Waste Management v Hunt Alabama law offered free disposal for in state waste, tax on out 1) legitimate purpose 2) but, there are other ways! 1) higher fees 2) Quantity limits Cant charge greater cost for out of staters DISSENT: Rehnquist economic implications This doesnt help federalism b/c it gives a state A reason to ban disposal all together Oregon Waste Systems, Inc. v Dept of Environmental Quality (p277) Oregon had a higher tax on out of staters Court held unconstitutional saying the difference with Chem.Waste had To be identifiable. The tax cant be used to make money West Lynn Creamery v Healy Cant hide a discriminatory tax and then refund it to instate interests DISSENT: Rehnquist: This is a subsidy, nothing wrong with it! G.M. v Tracy (supp28) What was being taxed was an individual, identifiable market The state wonlocal companies were only ones not taxed But, there are two different markets, OK tax Its how you phrase the issues, Ohio drafted it well!

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Camps Newfoundland v Harrison (supp29) State cant impose taxes on out-of-staters Taxed all, rebated nonprofits that served ME residents State argued they are non-commercial entities The SCt said the camps ended up having to pay more, so fees would End up being charged to out of staters using the camps. Market Participation Theory: If the state is a participant in the market, its Not a regulation, the DCC doesnt apply Baldwin v Montana Mo licensing case, harder for out of stater to get license Used immunities clause, not DCC Regulated recreational hunting, not commerce Facial Discrimination by localities Dean Milk v. Madison Local discrimination will be considered as state discrimination This is an ordinance by the city of Madison Madison law affects everyone the same SCT: 1. compelling interest, control over inspections 2. alternatives: a) send inspectors out b) pass a uniform milk ordinance PROBLEM: Ct is deciding what alternatives will satisfy interest Fort Graniot Sanitary Landfill (p284) MICH law said waste can only be taken from within state When a state sets a boundary at the county, it also sets up Boundaries at the state line Carbone v Clarkstown Local regulation forced local buildings to dump in city-subsidized Landfill at a higher price than regional landfills There was a legitimate economic interest But you cant use laws to make a landfill viable

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BARRIERS TO OUT OF STATE SELLERS Baldwin v GAF Seeling, Inc (p287) NY law imposed milk price control (The law was found OK in Nebbia v NY) NY denied a license to a dealer buying milk in NY to sell at NYs regulated prices. SCt: NY cant prohibit it b/c it affects IS Comm NY cant use laws to: 1) insulate itself from outside competition 2) regulate transactions outside of the state Law was constitutional, but this application wasnt Henniford v Silas Mason WA law: 2% use tax on item bought outside of state The difference is that WA is imposing its tax, still permits competition It allows Oregon to do anything, WA is enforcing tax differential Law is OK! Milk Control v Eisenberg (p291) PA adopts a minimum milk price structure NY dealer buys milk in PA, PA wants him to pay min PA price PA is using police power, but puts up a burden to OutofStaters The amount moved in I/S Comm is trivial So trivial that there is not even the slightest notion that It had anything to do with the reason for the regulation PA is merely trying to protect its market Thought: you would think PA would want to promote its industry Instead it is causing a disadvantage Combine this with triviality and There is no reason to think DCC invocation H.P. Hood & Sons v. Du Mond (p292) NY Ag Commissioner denied license to Hood for their 4th plant It would make for destructive consequences Is the law constitutional? Facially, it is constitutional, but this application may not be This application protects local industry from out of staters They are putting up barriers to exportation NY argues it would have denied the license to instaters too! Legitimate health reason they needed it. SCt there is still an issue of competition! Dont Boston kids need milk, too? Cant horde resources

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While it is a trivial amount, it will impact local economy (NY argues this in denying license cant refute!) 1) Not a balancing test, a per-se rule 2) If it is a balancing test, sided with economic interests 3) Out of Staters cannot take part in a deal that gives them monopoly? Cities Service Gas Company v Peerless (p295) OK has economic concern APPLICATION OF THE PIKE TEST South Carolina Highway Dept v Barnwell (p.299) SC passes law stopping trucks above a certain weight from Traveling on its highway DistCt found against DC but SCt upheld the law: No good reason to substitute the jm of a DistCt judge With that of the legislature SC builds the roads, they know what is safe This is a matter for local concern Burden fell mainly on in-state concerns Southern Pacific Co. v Arizona AZ sets a length limit on trains Ct overruled Barnwell, and struck the weight limit down It was an ineffective safety rule 1) State constructs, maintains and owns roadways -- it doesnt have a close relationship over railways 2) RR have a more important role on I/S Comm 3) Balance to what extent does law prevent Out of State Comm -- benefit to the state is slight -- burden to I/S Comm is great Why use the balancing test? Political systems protect local regulation 1) the cost fell entirely out of state RRs had to hire more AZ people (see FN2) 2) it promotes local jobs at the cost of others DISSENT: Douglas: Ct should only intervene when leg discriminates Here, the ICC could regulate this Administrative Govt hasnt acted, why are courts?

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Bibb v Mavajo Freight Lines (p.305) Illinois law required contour mud flaps to be used in state Douglas writes opinion: 1) low state interest rocks still kick up and hit cars wheels overheat the law is ineffective 2) burden on Comm is great trucks have to change flaps Pike v Bruce Church Sets non-discriminatory test Kassel v Consolidated (p306) Iowa statute prohibits the use of large trucks from highways Barnwell: Ct doesnt want to second-guess states But here, SCt says Iowa wasnt motivated by safety Exceptions were available 1) trucks carrying livestock/equipment there are not many interstate farmers 2) border cities could waive provision border cities get benefit of IS Comm 3) mobile home leaving or with final destination in IA but not drive through! 4) Govs veto message on accidents wants to route accidents out of state All of the exception benefit local people! PIKE TEST 1) Doesnt regulate evenhandedly, set up exceptions 2) No legitimate state interest, not for safety 3) Not incidental intentional consequences Must do balancing test Burden on I/S Comm outweighs local benefit! Courts will fail these things on the balancing test, so there isnt a binding precedent!

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EXCEPTION TO THE DORMANT COMMERCE CLAUSE: MARKET PARTICIPANT THEORY If the state (or city) is a participant in the market, the DCC doesnt apply to them. Applications Reeves, Inc. v Stake SD owned their own cement factory and only sold to in-state buyers DCC doesnt apply they didnt set a regulation against the buyers bringing The cement out of state White v Mass Council of Construction Employees, Inc. p.324 50% of ees of contractors must be from Boston. MA arg 1) This is a municipality not state SCt: doesnt matter MA arg 2) It only discriminates against non-Bostonians SCt: Using Dean Milk, it is irrelevant Under Clarksville argument, eventually it adds up Out of staters will have a more difficult time getting jobs so it is discriminatory Look at the interests: Boston wants to keep jobs in the city, Ct says not a strong enough int. Ct says it is unlikely to find a strong state interest However, the city of Boston was a mkt participant Follow the moneydownstream argument All ees in a sense work for the city Council disagrees, says city is merely hiring the contractor City says they are building a city building CT: in a real sense, the City is controlling mkt in which they participate Can a city discriminate in favor of its citizens YES. If they participate in the market South-Central Timber Development, Inc. v Wunnicke (p325) Alaska selling trees and requiring buyers to process it in ALA Pike said home processing requirements are facially discriminatory (Pike, however, is the non-disc test for burdensome statutes How does it apply here? The court never says!) Alaska knew home processing laws were unconstitutional, why pass law? Because they are a market participant White was just passed! They put a restriction on goods for a mkt they participate in!

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SCt: They are regulating AFTER the sale, not before. They sell the goods, not in processing market Follow the money, like White turned on fact that ees worked for city Here the money flows upstream, Further issue is that the buyer is in Japan State laws cant affect international commerce That is restricted for Congressional control Commerce Clause isnt dormant Reeves clearly stated it wasnt a national issue Also, Timber is a national resource, cement is a manufactured product Just b/c it happens to be in a state, state doesnt control it OKLAHOMA CASE??

Exam Approach: Hypo: AZ law says state owns cantaloupes, buyers must package in AZ I. Is the State a mkt participant Y: Reeves/Boston N: Alaska II. Assuming it is not, use DCC Discriminatory? Dean Milk Non-Disc? Pike test

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Differs from Commerce Clause in 5 ways: 1) Corporations have no protection under P&I 2) Rights provision, not a grant of power to Congress, so non-waivable 3) Stricter standard of review 4) Extends beyond commerce to all fundamental rights 5) no market participant exception to the Clause The DCC protects federal interests between disputes among states and congress when Congress hasnt made a decision on the issue. On issues of police power or market power, national uniformity is not in question. P&I is an issue of rights, not a question of regulation on politics. The function of the state doesnt matter in terms of police or market power. If infringing on individual rights, the states cant hide behind the markets! In DCC, the burden on I/S Commerce triggers the question of discrimination; In P&I, the discrimination itself triggers the P&I questioning. Two theories of the clause 1) Collection / Protection of fundamental rights ct decides on the rights 2) Anti-Discrimination Rule cant discriminate against other states INTERPRETATIONS Textual: Whatever P&I are, they apply to everyone Pointing to Art II? Contextual: What is around it? Cooperation among states Historical: Consider the debate Art IV of the Arts of Confederation had more detail Was a lot more anti-discriminatory APPLICATIONS Baldwin v Montana (p330 FN#3) State residents could buy a packet of licenses OutOfStaters had to buy all licenses individually CT; ELK hunting is not a fundamental right, it is recreation P&I doesnt apply unless it is a fund. Right DISSENT: The state is discriminating, the ct ought to Balance discrimination v state interest

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Hicklin v Orbeck (p331) Alaska required pipeline jobs be reserved for AL residents DCC problems, but also P&I problems Applied balancing test: If a state is going to discriminate, it must justify the discrimination with an important state interest that solves a problems caused by the presence or activities of outsiders. AL: unemployment! If Outers werent there, it would be OK Ct: AL trying to stop flow of job seekers. You cant do that unless the outsiders are a peculiar source of evil nonresident employees were not qualitatively different to be OK, there has to be something specific to their outsiderness The test: 1. important state interest to solve a problem problem related to that presence/activity problem b/c they are outsiders, not job seekers 2. law must be narrowly tailored to promote inter. Council v Camden Not a definitive answer on whether there is a violation or not Council files a P&I complaint, dropped DCC complaint DCC complaint was ruled on in White But Mass SC only ruled on DCC in White Ignored P&I compliant Camdens Arguments 1) Non-Discriminatory in term of interstate It discriminates against intrastate as well! In state people can use political system for remedy The burden in in-state! (cf SC and Blackwell) CT: It could keep moving on to other municipalities 2) Local Ordinance Not State Law CT: Dean Milk local ordinances are state laws 3) The right to employment isnt fundamental Seeking a job is a right, but the ct has made exceptions When it comes to public employment [White] Market Participant theory Council: They are not public employees CT: No court exceptions to P&I

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Interests of Camden are high Dont want people to take the money and run The buildings are for the purpose of revitalization The law is narrowly tailored to address concern They arent going to stop all job, 60% still available Is the law narrowly tailored to the interest? CT doesnt know You need a trial on the issues & fact finding A settlement was negotiated, so no answer 1) The law may not be Unconstitutional 2) No market participant exception to P&I 3) Exceptions for public employment doesnt extend to subcontractors beyond the participant EXAM APPROACH: Supreme Court of New Hampshire v Piper (p334) Facts: NH passes a law stating you have to live in NH to enter the bar ISSUE: Does NH prohibition nonresidents violate the P&I clause? RULE: If out of staters are being discriminated against in an area that violates a fundamental right, it will be unconstitutional unless the state shows it is protecting an important state interest in a manner that is narrowly tailored to protect that interest APPLICATION: Does it implicate a fundamental right? YES Employment is the fundamental right Lawyers have an important role in the federal system bringing unpopular claims Because there is a fundamental right, the ct moves to analyse ANALYSIS: Important State Interest? Probably Not 1. NH says unfamiliar with state procedures bar exam is non-discriminatory have continued legal education requirements 2. less pro-bono work do instaters do it? Required to do it? 3. clients may not have access for service require everyone to have a secretary for service Are the rules narrowly tailored if these are important interests? Look for non-discriminatory alternatives CONCLUSION: law is unconstitutional DISSENT: State interest is to create a higher quality of the bar to draw upon For elected state officers

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States cannot regulate in an area where Congress has already regulated. The area is said to be pre-empted from state regulation. Rice v Sante Fe Elevator Corp (p342) Congress may preempt states in three ways: 1. Pervasive Scheme of Federal Regulation 2. Dominant Federal Interests 3. Conflict Preemption Florida Lime & Avocado Growers v Paul (p343) GET NOTES HERE!!!! Cases are Fact Specific Moore v PA PA law says trailers couldnt put 7th car on their cab Moore argues there are fed regs, -- pervasive theme of regulations -- interstate commerce committee sets rules on I/S trucking -- dominant federal interest (mud flap case) CT: no conflict b/c Cong said nothing about 7th cab The 7th car is a height and weight restriction Height & Weight is reserved to states NOTE: later any trucker who repeatedly violate weight & height lose license Ct held against the law saying Congress has preempted state regs Because it handles licensing EXAM APPROACH ON PREEMPTION 1. Is there a direct conflict as defined by Florida Lime? There is no direct conflict if you can abide by both laws at same time IF YES, apply ART VI Supremacy Clause and State Law falls IF NO, look for preemptions 1. Express does what the state is doing fall with an area expressly preempted by Congress? 2. Implied does what the state is doing fall within an area impliedly preempted by Congress? In RICE, you need a pretty clear statement that Congress intended to preempt in that specific area as shown in the test below: 1. Pervasive Scheme of Fed Law? 2. Dominant Federal Interest? 3. Potential for conflict? Is there a possibility that if a state enforces it, it may interfere with a federal goal or purpose?

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Gade v. National Solid Wastes management Assn (p344) ILL law dealt with worker safety & public health Fed has OSHA laws in conflict If a state is regulating in another area, the state may win In a plurality opinion, Ct sais area was preempted 3 judges say implied 2 judges say express 4 say no preemption If Congress has granted a power to a Commission or Agency, it takes it away from a state, even if the power hasnt been exercised yet. This ruling has been inconsistent, though. Some courts have said its a state power until it is exercised PACIFIC GAS & ELECTRIC COMPANY v STATE ENERGY RESOURCES State did a good job structuring the law Set up a moratorium on licensing nuke plants until Federal law found a solution to waste Pacific argues: 1) Direct Conflict 2) AEA 3) Fed Agency 1) DIRECT CONFLICT Pacific: cant comply with both CT; Yes, you can, FED LAW doesnt force you to build 2) EXPRESS PREEMPTION Pacific: Congress has set waste guideline in AEA Law means Congress regulates in this area CT: Cong only discussed safety issues This issue is economic they cant predict the cost to dispose Of the waste in 500 years! 3) IMPLIED PREEMPTION Pacific: Federal govt promotes the peaceful use of nuke power CT: Federal goals cannot be accomplished at all costs This is probably not what Congress meant! CT held for upholding the state law! Why is Pre-emption Controversial? Questions the role of the court: CC - Should court decide Constitutionality? DCC Nothing in Constitution CT made doctrine Thomas, Scalia DCC has no effect only Cong can regulate! P & I Only fundamental rights how does court know? PE Why should court strike down a state law when it doesnt conflict? Implied Preemption is a controversial doctrine! Congr would have said it, if it meant to!

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Barron v Mayor and City Council of Baltimore (p418) 1833 - City had destroyed the value of his wharf - $45k in damages 5th Amendment property shall not be taken Issue1 Is this a taking Issue2 Does this clause apply to fed or state govt? Marshall Bill of Rights and 5th Amend only apply to Fed Govt States have their own Const and Clauses This law was good until the Civil War The Civil War Amendments didnt stop involuntary servitude Slaughter-Houses Cases LA prohibited required butcheries to rent space from slaughterhouses Current slaughterhouses had to rent areas to butchers Now there was a slaughterhouse monopoly Arguments by the butchers: 1) Violated 13th Amendmentinvoluntary servitude CT said no didnt have to serve 2) Violated equal protection of 14th butchers singled out CT says no EP only applies to slaves, never for non-Negroes 3) Violated due process of the 14th CT says due process is to protect from govt officials 4) Violated P&I clauseright to be a butcher cites Corfield v Coryell (425): right to work is fundamental Art XIV extends P&I to states, use lang & dec on Art IV Art IV is about out of state discrimination this is instate Must extend rights of federal citizenship to all CT says no right to be a butcher is not fundamental After Slaughterhouse, P&I was never used to strike down a state law until 1999 Saenz v Roe (p32) Ct stuck down a state law that limited new state residents to the amount of welfare they would have received in the state they just moved from as violating the Citizenship Clause of 14th Amendment This law abridged the P&I of a US citizen! The Clause is a source of federal judicial authority to stop states from infringing on personal rights!

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P&I and DP, the debate Caldor v Bull 1798 (p455) The legislature overruled a judicial probate decision Chase/Iradell debate 1) Can you strike down a law only if it violates the Constitution 2) Can you strike down on a higher fundamental rights -- There are natural laws that precede the Constitution For the most part, the courts leave states alone If States go a little too far then use 14th Amendment due process clause With P&I, most laws are enacted under police power to regulate industry, so Courts couldnt use P&I to affect laws, started using DP With DP, usually, govts are stopped from doing things without procedures DP protects the procedures After Slaughterhouses, cts made DP substantive The theory is that some things are beyond the powers of states MUDD v Illonois MUGLER Allgeyer v Louisiana (p460) LA law prohibited contracting with an ins co not registered in state Ct struck down law saying right to contract is a fundamental right Ct could have just used DCC, b/c law was clearly uncons They decided to use DP to start using it! Lochner v New York Bakers in NY were prohibited from working more than 60 hrs a week Statute was written for health reasons CT struck down under freedom to contract theory you can buy as many hrs of labor as ees will sell! DISSENT: These were health laws, an exercise of police power Where do you draw the line The Lochner Test The act must have a more direct relation, as a means to an end, And the ends itself must be appropriate and legitimate STRICT SCRUTINY The Court will look more closely at infringement of fundamental rights ENDS legitimate statute? No! no labor or health law MEANS direct relation Lochner was an activist court, read more into Const. than was argued 1. they found a Constitutionally protected right

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2. second guessed the states judgment on health -- did ct think state was lying? What was happening in the background? Labor unions werent being successful, and when they Were, states would make their positions the law Legislature was getting involved in managerial decisions Lochner court is saying it is not an appropriate role for legis. There are zones of transactions that the States cant legislate DISSENT: 2 Theories Harlan: Agrees there is a liberty to contract but subject To reasonable police regulation Feels the court had too high a standard Health reasons are legitimate and there were pages of Medical testimony, the states have the burden, but satisfied Holmes: If a reasonable person could find this as a reasonable Health law, the law is OK Very low burden for state The cts economic view doesnt matter Weaver v Palmer (p473) Laws bans shotty in mattresses Ct says unnecessary means Should have required cleaning instead or prohibited certain types Focus on the means analysis look for narrow ways Muller v Oregon (p470) Sustained an Oregon law that limited hours for women in factories Theory of women in society their physical structure is weaker Bunting v Oregon (p471) Ct overturned law that said Employers could not force ees to agree not to join a union CT said people are free to contract in any way they want to Adair v US (p472) Ct held a federal yellow dog contract law unconstitutional Adkins v Childrens Hospital (p472) CT held a min wage law for women was unconstitutional Law was too arbitrary, it was across the board, w/o regard to contracts New State Ice v Liebmann (p473) CT struck down a law as restraining entry into a line of business

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Law in OK would have made the manufacture of ice a public utility Adams v Tanner (p473) Same as New Ice, Ct struck down a law prohibiting employment Agencies from collecting fees. Start of the Modern Era Nebbia v New York (p474) NY passed a law to protect the milk market that set milk prices Court said the law was reasonable Harlan State met its burden of connected means to ends West Coast Hotel v Parrish (p476) Overruled Adkins and upheld min wage law for women Protection of women is more important than freedom to contract Need protection from unscrupulous employers United States v Carolene Products (p478) Ct upheld federal ban on filled milk for health reasons Govt met its burden that it was unhealthy Deference to Congress! Olsen v Nebraska (p479-480) Ct reversed state holding of a maximum wage law as unconstitutional You cant look at previous judicial decisions look at the Constitution Lincoln Fed Lbr Union v NW Iron and Metal CO (p480) Court held state right to work law was constitutional Union membership cannot be considered in ee decisions When a fundamental right is not at stake, no strict scrutiny Ferguson v Skrupa (p480) Courts will no longer second-guess wisdom of legislatures to Chose their own economic model Williamson v Lee Optical (p481) Eyeglass case, law required eyeglass prescription for any eyeglass adjust. Ct said law was overly broad and unnecessary There is no fundamental right to buy glasses! Ct wondered what legislature was thinking BUT the law was rationally related to a health goal, so was upheld

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The Williamson test has now become: 1) Is there a legitimate state interest 2) Is the law rationally related to that interest? (tends to promote)

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Meyer v Nebraska (p516) State law prohibited teaching of foreign languages The Meyer view of Fundamental Rights: Broad view of liberty as economic and personal rights Ct struck down as interfering with rights of teachers, students & parents Pierce v Society of Sisters (p517) Oregon law required children to attend public schools Ct said it violated the rights of parents to have choice to send kids to school The fundamental right is of parents and guardians to direct the upbringing of children under their control. The ROADMAP outline book uses this line as the answer to a hypothetical essay asking if a law making it a crime for parents to spank their children in public. The Essay answer says this line protects parents to punish their children as long as its not excessive The Strict Scrutiny Test Skinner v Oklahoma (p517) OK law required sterilization of convicts after third offense Marriage and procreation are fundamental rights Cts must look at these laws strictly when a fundamental right is at stake! Griswold v Connecticut (p518) CONN law prohibited the use or assisted use of contraceptives CT says there are fundamental rights of privacy through Constitution penumbra core values protected throughout the Constitution Legit state interest? Stopping promiscuity If so, this law sweeps too broadly The home and privacies within should be protected If there was a legit interest (promiscuity?) this law only Affects married people, doesnt satisfy interest Poe v Ullman (p522) cited in Griswold Dismissed on justiciability grounds Harlans DISSENT: The law made it illegal for married couples to Use contraceptives intolerable and unjustifiable invasion . . . on personal lives should you search private homes for condoms? The fundamental right violated? Sanctity of marital rights Eisenstadt v Baird (p528)

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MASS law prohibited distribution of contraceptives Dr Baird had distributive con. Foam to unmarried person Griswold now extended to protect the right on the individual, not Just married persons. When there is a fundamental right, a test of stricter scrutiny started developing Due Process Threshold: Is it a fundamental right that is being infringed upon? IF NO: Minimum rationality test 1. Legitimate State Interest 2. Is the law rationally related so that it tends to promote? IF YES Strict Scrutiny 1. Compelling State Interest (more than legitimate) 2. Is the law narrowly drawn and tailored to that interest? The law must be as narrow as possible as not to infringe on the fundamental right when it is not promoting the compelling state interest Roe v Wade (p530) TX law made abortions illegal unless the life of the mother was at stake Ct held that the statute violates a fundamental right the right to choose Roe says she has a right to privacy & a right to choose State says no such right, its a life CT says State has some right to regulate narrowly: Compelling State Interest: 1) Protect life a fetus and 2) life of mother Ct says fetus is not a person in the Constitution, perhaps In the third trimester, the interest would be compelling CT says life of mother is tied into the advice of the physician You have a right to an abortion in consultation with your physician without interference from the state EXAM APPROACH Doe v Bolton (p537) ISSUE: Does a GA law that requires only GA residents receive abortions within the state violate the Privileges and Immunities Clause of the 14th Amendment? RULE:Is the law particular to the outsider ness of the non-GA residents This is a Zone of Privacy Rule: It is a different set of rights, a right is violated that affects the vitality of the nation as a whole.

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APPLICATION: State Argues that there interest is that abortions are dangerous and they want to make sure that recipients are close enough to hospital to get back if there is a complication after the procedure. Doe argues that some borderline cities in other states may be closer to hospital than some instaters, therefore the law is not narrowly tailored to that interest. Doe further argues that the fact that someone farther away from the hospital can get an abortion calls into question that states stated reasoning. Threshold Question (Is there a fundamental right for an abortion?) not overly applicable because in this instance there is a discrimination that harms the vitality of the nation. CONCLUSION on P&I: the law is unconstitutional. ISSUE2: Does a GA law that requires only GA residents receive abortions within the state violate the Due Process Clause of the 14th Amendment? RULE2: Is there a fundamental right? IF NO look for a legitimate state interest and a rationally applied law. IF YES use Strict Scrutiny look for a compelling state interest and a narrowly applied law APPLICATION: The right of choice is fundamental Compelling State Interest? State says they only want accredited hospitals to do abortions and not clinics due to health reasons? State failed to show that there is a difference in the procedures b/w an accredited hospital and clinic. State has burden to prove and failed to show the law is narrowly tailored to a state health reason. Note: Casey (v Planned Parenthood) line of cases, undue burden standard if it deters people from getting an abortion it is unconstitutional. Casey struck down a law that required husband notification. Also, States are free to make their own laws for post-viability abortions, in Hodgson v Minnesota, the court struck down a law that required that both parents of a minor have 48 hour notification of an abortion because it was not rationally related to the state interest, but in Ohio v Akron Center for Reproductive Health, the court upheld a law that required parental notification OR judicial approval. The key, as is Casey, is that there is not an undue burden, coupled with a legitimate state interest. Bowers v Hardwick (p593) Ga law prohibits sodomy . . . it was never an anti-homosexual law

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Is sodomy and/or homosexuality a fundamental right? Ct said noevidence through the ages that it against society And against the collective conscience of the people Since it is not a Fund.Right, apply mere rationality test Law was rationally related to societal interest: 1. Legit state interest: Majority of public thinks it is immoral 2. Law is rationally related! DISSENT: Right of Privacy! Freedom from govt interference in provate life! If they argued Equal Protection? GA never passed an anti-homo law Using Griswold, right of married people to have freedom in bedroom! Kelley v Johnson (p599) Local law set a standard for lengthy and style of policemens hair CT says mere rationality standard applied and law was OK Policemen are not citizens at large Youngberg v Romeo (p600) Rights of someone in a mental institution CT held that patients have a right to safety and freedom of movement But only under certain circumstances do they have a right to training Whalen v Roe (p601) CT upheld a NY law requiring the state to database all recipients of Prescriptions of dangerous drugs. zone of privacy has to do with two different interests: 1) personal interest in avoiding personal matter disclosure (Griswold) 2) independence in making decisions (Roe v Wade) This law didnt affect either, and didnt interfere with a physicians decision To prescribe or a patients right to fill a prescription Roberts v US Jaycees (p601) Associational Rights do the Jaycees have to accept women? YES Associational Rights are based on three things 1) Smallness (Jaycees were a large org) 2) Selectivity (Jaycees have no high standard of acceptance) 3) Seclusion (Jaycees are overtly public)

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The Equal Protection Clause kicks in when there are statutes that treat groups of people differently. (Review the Venn diagram on p 637). Assume the purpose of the law is to eliminate mischief, and the defining characteristic of the law is the Trait. Examine Venn diagrams MT enclosed in circle absolutely the same classification of law. Coincides completely with the class with respect to the law. M enclosed in Ts circle Over-inclusive includes mischief and others as well T enclosed in Ms circle Under-inclusive M and T circles overlap - didnt include everyone that posed a threat but, include some that didnt. This is both under and over inclusive M and T circles dont meet generally not permitted. Wouldnt pass EP analysis What level of incongruity is permitted? As long as some overlapgenerally be permitted b/c it would tend to promote legitimate state interest. In under-inclusive and over-inclusive situations : statutes would affect more then and would miss others respectively. Railway Express Agency v New York (p639) Cant place an ad on the truck unless it is your delivery van Mischief is Traffic Safety State says by limiting advertising, drivers will concentrate on the road Ct says advertising is not the only distraction when driving Also, how can state draw distinction between delivery vans Law denies equal protection to business owners wishing to advertise Williamson v Lee Optical (p642) Law didnt apply to ready to wear glasses! McDonald v Board of Election Commissioners (p642) If you are in jail, you cant get an absentee ballot People who can get them: sick, out of country, etc. In Jail, you are in the country and not sick! Ct found no good reason to discriminate against people in jail Fundamental right to vote States should move at one step at a time to their interest

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Over-Inclusiveness in a min. scrutiny test is OK New York City Transit Authority v Beazer (p651) The NYTA rejected applicants who had previously tested positive for drugs The states goal was a drug free and safe environment, and while this law Was overly-inclusive, affecting people who may not have touched drugs in 25 Yrs, it was rationally related to the interest. Strauder v West Virginia (p663) A black man was convicted by a white jury WV law allows only white on juries Ct says EPC prohibits the exclusion of blacks from jury It is designed to prevent racism Plessy v Ferguson (p671) A RR segregated blacks and white with separate cars Ct upheld the law and distinguishes from Strauder This was social not political The RR didnt exclude, it separated OK as long as there was a separate but equal accommodation Brown v Board of Education (p673) State law setup a separate school for blacks CT struck down saying not appropriate to send them to different school A speared black school is, by definition, not equal KS court said the law doesnt denote inferiority, so you cant Read inferiority into the interpretation CT says the state cannot make a statement that a section of the society Cannot participate in public education Bolling v Sharpe (p677) DC ran a separate school for blacks. Congress argues EPC doesnt apply to them, not in 5th Amendment Ct said Congress has no right to discriminate EPC anaylsis If the law treats two groups differently, apply EPC analysis Ex. Emissions law forcing a converter after 5/5/01 Draft applies only to men Airline pilots can only be white ISSUE: EPC does law violate 14th Amendment EP clause of DP RULE: What is nature of the group discriminated against

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1) Racial/Religious Strict Scrutiny 2) Gender Mid-Tiered Scrutiny 3) Social/Economic Minimum Rationality Strict Scrutiny 1) Compelling State Interest 2) Narrowly-tailored if it does not affect anyone else Mid-Tier Scrutiny 1) Important State Interest 2) Law must be substantially related Minimum Rationality 1) Legitimate State Interest 2) Is the DISTINCTION rationally related?

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